Charging decisions: cyclist mown down by driver

As a specialist motoring solicitor I spend a lot of time talking to the Crown Prosecution Service about charging decision - usually trying to get them to reduce or drop the charge against my client. But, in this case, I think they got the charge badly wrong.

Earlier today Justine Henshaw-Bryan was imprisoned for
three-years (she won’t serve anywhere near that long) after she chased cyclist Damien
Doughty in her car before deliberately running him over as he attempted to
escape her by getting out of the road.

You can view the footage here but be warned it isn’t nice:

Ms Henshaw-Bryan pleaded not guilty to a charge of causing
serious injury by dangerous driving and was banned from driving for four and a
half years. But the big question for me is why she was charged with that
offence at all. Her driving was certainly dangerous and she did cause serious
injury, Mr Doughty spent three days in intensive care, but her actions were
also very deliberate.

The maximum sentence for causing serious injury by dangerous
driving is five-years imprisonment, which itself appears at first glance
bizarrely low when you consider that the Road Traffic Act 1988 tells us that “serious
injury” means “physical harm which amounts
to grievous bodily harm for the purposes of the Offences Against the Person Act
1861”. I suspect that therein lies the problem at the heart of this
charging decision because looking at the video it is hard not to think that
section 18 of the Offences Against the Person Act 1861 – aka GBH with intent to
cause really serious injury – is the appropriate charge here. And section 18
GBH carries a maximum sentence of life imprisonment, not five years!

There is a key difference between causing serious injury
while driving dangerously and section 18 GBH; intention. The mens rea, or
mental element if you prefer, of the two offences is very different and should,
in my opinion, be a key consideration when deciding on the appropriate charge
to bring.

Causing serious injury by dangerous driving has no mental
element so far as the infliction of injury is concerned. It does not matter
whether you drive dangerously, lose control and plough into tea shop or whether
you intend to drive through the window of the tea shop and injury the people
inside – the definition of the offence cares not at all.

I suggest that the reason the sentence for causing serious
harm appears so low is because it requires no intention to cause that harm.
This would suggest that Parliament intended it to be used in situations where
the injury resulted purely from the driving rather than in situations like this
one where the intention seems to have been to cause injury and the driving was
simply the method of accomplishing that.

Section 18 GBH requires an intention to cause really serious
injury, which explains why the sentence for that is far longer than for either
causing serious injury by dangerous driving or section 20 GBH, which can be
committed recklessly rather than with an intention to injure.

In Ms Henshaw-Bryan’s case, she became angry following an
altercation with Mr Doughty, in which it has to be said, he behaved like an
arse. She then chased him in her car from Stoke Newington High Street onto
Victorian Grove where she deliberately rammed her car into him nearly crushing
him against a tree. He was lucky not to have been killed and she in turn lucky
not to be facing a murder charge. Had he died in these circumstances I cannot
imagine a reasonable prosecutor bringing a death by dangerous driving charge in
place of murder.

Given the deliberate nature of the offence I cannot understand
why the prosecution chose to run with a charge of causing serious harm while
driving dangerously instead of section 18 GBH, which would certainly have been
viewed as aggravated by the road rage nature of the incident.

What difference does it make? Well when you look at the
sentencing guidelines for GBH you see that Ms Henshaw-Bryan would likely have
been placed in category 1, which is the most serious category. Her victim was
particularly vulnerable due to his being a cyclist and her being in a car. The
fact she used the car as a weapon and deliberately targeted a vulnerable victim
shows us that there is a higher degree of culpability at play in this offence. If
the court accepted she were in category 1 then the starting point would have
been 12 years’ imprisonment not the 3 she received!

I also think that the way Ms Henshaw-Bryan conducted her
defence may well have been something of an aggravating factor too. Rather than accept
what she had done and show remorse she lied attempting to blame the offence on
her then boyfriend, something the jury did not believe.

All of what I have said is based on the news reports I have
read. I wasn’t present in court so maybe there was some good reason for not
charging GBH, but I note HHJ Perrins comments in passing sentence:

"This was a calculated attempt to run him over and use your car as
a weapon… it would have been obvious that to do so would have carried
significant risk of injury."

With those words in mind I repeat my criticism that this
offence was grossly undercharged and the defendant has got away with an
undeservedly lenient sentence as a result.

Comments

This woman drove directly at flesh and blood as she was chatting on a phone. Non-cyclists have no idea how terrifying this is. If you don't want people to react, don't place their life in danger. Damage to a wing mirror is nowhere hear the same as threatening a life. It is understandable that the cyclist, having been placed in danger then gestured at by the same driver, would react angrily. You can't fire a gun at someone then say they're an arse for being angry.

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I am a solicitor-advocate who specialises in motoring law with a particular interest in representing clients who have been charged with criminal driving offences involving alcohol, such as drink driving and failing to provide a specimen of breath.